2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 1 of 7 Pg ID 4602 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

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1 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 1 of 7 Pg ID 4602 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, v. Plaintiff, CRIMINAL NO. CR NGE HON. NANCY G. EDMUNDS D 2 BOBBY W. FERGUSON, Defendant. UNITED STATES RESPONSE TO DEFENDANT BOBBY FERGUSON S MOTION FOR HEARING TO ALLOW DEFENDANT TO BE RELEASED ON BOND PENDING SENTENCING Defendant Bobby Ferguson has moved this Court to reconsider the Court s March 11, 2013 ruling that Defendant be detained pending sentencing. The motion should be denied. As this Court is well aware, a jury convicted Defendant of nine felony counts that included racketeering, extortion and bribery. At the detention hearing, the Court heard arguments from the parties and concluded that Defendant failed to overcome the presumption by clear and convincing evidence as set forth under Title 18 United States Code, Section (Detention Hearing, 3/11/13, pp ). The Court concluded that its decision for detention was based squarely on the presumption set forth in the statute that detention is required in this circumstance. (Id at 21.) Section 3143 presumes that a defendant who has been convicted of a crime may not be released pending his appeal or sentencing unless he shows by clear and convincing evidence that he is not likely to flee or pose danger to the safety of any 1

2 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 2 of 7 Pg ID 4603 other person or the community. Additionally, motions for reconsideration are disfavored unless the moving party presents important new information bearing on the court s decision or a significant change of circumstances. As stated under Rule LR 7.1(h) of the Local Rules for Civil Cases in the Eastern District of Michigan, which is also used in criminal cases: Generally, and without restricting the court s discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case. Defendant s motion for reconsideration should be denied. First, Defendant s motion merely presents the same issues that this Court has already ruled upon. This Court reasoned, with respect to Mr. Ferguson, he has a prior conviction of assault with intent to do great bodily harm. He nevertheless, following that, was found in possession of a firearm at his place of business. He appears to have access to plenty of money, although he denies that still exists, and he has a history of, certainly of intimidation, as is evident in the testimony by Officer Fountain... (Detention Hearing, 3/11/13, p. 21). Here, Defendant argues that because members of Defendant s family and a friend are willing to pledge their homes as surety he should be released pending sentencing. Defendant s argument is misplaced in that he has failed to show how the pledging of these homes overcomes the presumption of detention. Even if this Court were to consider Defendant s argument, Defendant has failed to provide this 2

3 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 3 of 7 Pg ID 4604 Court with any legitimate documents of ownership, copy of property deeds, or value of the properties for which this Court could consider. Furthermore, the Local Rules for Criminal Cases in the Eastern District, as well as the District s longstanding custom and practice, explicitly disfavor the posting of real property as collateral in criminal cases. As stated by Local Criminal Rule LCrR 46.1(b)(1), only cash, money order or cashier s check made payable to Clerk, United States District Court, or credit card is acceptable for a cash bond. Moreover, section (b)(2) of the same rule states, Unless approved in writing by a District Judge, property shall not be accepted as collateral for a bond. Id. Defendant s contention that the pledges of these five homes as surety tip the scales in favor of [his release] on bond pending sentencing is unfounded. (Defendant s Motion for Reconsideration of Bond, p. 3). Moreover, Defendant s argument that if he were to flee, his family members and friend would suffer dire consequences by losing their homes, should offer little, if any, comfort to this Court. None of the properties offered by Defendant is owned by him. Moreover, Defendant has not shown a palpable defect in which the Court was misled, or one that if corrected, would result in a different outcome. As offered by the government at the March 11, 2013 detention hearing, in 2005, Defendant was convicted of assault with intent to cause great bodily harm because Defendant pistol whipped a former employee. Defendant was instructed by the court that he could no longer possess a firearm. Defendant, however, disregarded the court s directive not once, but twice. In 2009, two semi automatic pistols were recovered at Defendant s place of business, one of Defendant s safe and another gun 3

4 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 4 of 7 Pg ID 4605 in Defendant s desk. In 2010, ignoring the court s directive again, a loaded shotgun was recovered at Defendant s residence. (Detention Hearing, 3/11/13, pp ). Defendant s continued disregard for the law was even more evident when Defendant instructed witnesses to lie to a federal grand jury and to the FBI about matters involving this case. In addition, Defendant, as the Court correctly noted in its ruling denying Defendant s original request for bond pending sentencing, threatened the life of a police officer and that of his family because the officer, in furtherance of his law enforcement duties, issued citations against Defendant. (Detention Hearing, 3/11/13, pp ). As was presented to the Court at the hearing on March 11, 2013, and as found by the Court, Defendant s actions themselves demonstrate that he cannot overcome a clear and convincing presumption that he is ineligible for bond. Defendant s request in the alternative for a real time GPS tether and/or home confinement, in lieu of incarceration, should similarly be denied. This trial showed Defendant s access to over $83 million in revenues gained from Defendant s extortionist conduct. The search warrants executed by law enforcement agencies in 2009 and 2010 revealed Defendant s access to cash and liquid assets over $2.2 million. (Detention Hearing, 3/11/13, p. 12). Even more alarming is the fact that the government recently discovered that in 1999, Defendant fraudulently obtained a Michigan Driver s License in the name of Antonio Cortez Julian Talley. (See Exhibit A, copies of Michigan Driver s Licenses in Defendant s name and in the name of his alias). The license Defendant fraudulently obtained from the Michigan Secretary of State expired on July 4,

5 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 5 of 7 Pg ID 4606 The address stated on the license is 6328 Julian Street, Detroit, Michigan. In the event that Defendant may claim that he is not the person depicted in the attached Michigan Driver s License for Antonio Cortez Julian Talley, it should be noted that the address used in the fraudulently obtained license is the same address associated with Four Childrens Enterprises, L.C., a limited liability company owned by Defendant. (See Exhibit B, Michigan corporation documents for Four Childrens Enterprises, L.C.). In fact, the Julian Street address is where the City of Detroit sends its bills for property taxes owed by the company. Furthermore, a criminal history check of the information on the fraudulently obtained license showed a traffic ticket issued in Alabama, where Defendant s mother resides and where Defendant is known to have multiple bank accounts. The fact that Defendant lied to the Michigan Secretary of State to obtain a fictitious license is evidence of his deception. It is unclear why Defendant applied for, and obtained, a Michigan Driver s License in an alias, but what is obvious is that it cannot have been for any lawful purpose. It is equally clear that Defendant had the means to commit fraud and to operate under a fictitious identity. The fact that Defendant was able to obtain a government document in a false identity shows that he can do so again and that he epitomizes a flight risk. Additionally, it is unknown what other documents Defendant may currently possess under the name Antonio Cortez Julian Talley or other illegitimate aliases. Defendant s potential sentence in this case is, in fact, reason to flee. Defendant is faced with a substantial term of imprisonment. As stated by this Court, [quoting Dimora], now that vindication is no longer available, an important 5

6 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 6 of 7 Pg ID 4607 incentive for [Defendant] to appeal in court is gone. (Detention Hearing, 3/11/13, p. 20). For all of the reasons above, as well as in the record of the Court s March 11, 2013 ruling, Defendant has failed to meet his burden under the bail statute, and he has failed to demonstrate a palpable defect in the Court s prior ruling. As a result, the Court should maintain its order of presentence detention for Defendant. Dated: March 25, 2013 Respectfully submitted, BARBARA L. MCQUADE United States Attorney s/ MARK CHUTKOW (313) mark.chutkow@usdoj.gov s/ R. MICHAEL BULLOTTA (313) michael.bullotta@usdoj.gov s/ JENNIFER L. BLACKWELL (313) jennifer.blackwell3@usdoj.gov s/ ERIC DOEH (313) eric.doeh@usdoj.gov 6

7 2:10-cr NGE-MKM Doc # 295 Filed 03/25/13 Pg 7 of 7 Pg ID 4608 CERTIFICATE OF SERVICE I hereby certify that on March 25, 2013, I electronically filed the foregoing document with the Clerk of the Court using the ECF system, which will send notification of such filing to the following: Gerald Evelyn Michael Rataj Susan Van Dusen Attorneys for Bobby Ferguson s/ ERIC DOEH (313) eric.doeh@usdoj.gov Dated: March 25,